Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal Nos.4780-4781 of 2018

Union of India & Ors. .... Appellant(s)

Versus

794898 T. Ex.  Corporal Abhishek Pandey.                                              …. Respondent (s)

J U D G M E N T

L. NAGESWARA RAO, J.

1. These Appeals are filed against  the judgment of  the

Armed  Forces  Tribunal,  Regional  Bench,  Lucknow

(hereinafter,  ‘the Tribunal’) by which the order of discharge

of  the Respondent dated 17.01.2013 was set  aside.   The

Tribunal directed the payment of back wages to the extent

of 25 per cent.  

2. The Respondent was enrolled in the Indian Air Force on

28.09.2004.  A  warning  was  issued  to  the  Respondent  on

18.04.2012.   By  that  time,  there  were  seven  entries  of

punishment  (3  Red  Ink  and  4  Black  Ink)  in  the  Conduct

Sheet of the Respondent.   The Respondent was informed by

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the said letter dated 18.04.2012 that he was already in the

category  of  habitual  offender.   In  accordance  with  the

Habitual  Offenders  Policy,  the  habitual  offenders  can  be

considered for discharge from service under Rule 15 (2) (g)

(ii)/ Rule 15(2)(k) read in conjunction with Rule 15(2) of the

Air  Force Rules,  1969 (hereinafter,  ‘the Rules’),  under the

Clause  “His  Service  No  Longer  Required  Unsuitable  for

Retention in the Air Force”.  The Respondent was cautioned

and  counselled  to  mend  himself  and  desist  from acts  of

indiscipline.   He  was  also  warned  that  any  addition  of

another  punishment  entry  would  render  him  liable  for

discharge from service under Rule 15 (2) (g)(ii)/ Rule 15(2)

(k) read in conjunction with Rule 15(2) of the Rules.    

3. A notice was issued to the Respondent on 11.07.2012,

directing him to show cause as to why he should not be

discharged  from service  under  Rule  15  (2)  (g)  (ii)  of  the

Rules.   There was a reference to the warning letter dated

18.04.2012  in  the  show  cause  notice.   Even  after  the

issuance  of  the  warning  letter  dated  18.04.2012,  the

Respondent indulged in acts of indiscipline on 10.06.2012

and was awarded ‘Severe Reprimand’ on 13.06.2012 by his

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Commanding Officer.  As the Respondent was not showing

any  improvement,  he  was  found  to  be  a  poor  Airman

material  and  not  amenable  to  service  discipline.   The

Respondent  submitted  his  explanation  on  05.08.2012  in

which  he  admitted  that  he  had  indulged  in  acts  of

indiscipline due to bad company.    He requested for a final

chance  to  improve.    After  considering  the  explanation

submitted  by  the  Respondent,  the  Air  Officer-in-Charge

approved  the  discharge  of  the  Respondent  from  service

under  Rule  15  (2)  (g)  (ii)  of  the  Rules  as  he  was  found

unsuitable for the Indian Air Force.  

4. The Respondent  challenged his  discharge before the

Tribunal by filing Original Application No.125 of 2013.  He

relied  upon  a  Policy  dated  16.12.1996  governing  the

habitual  offenders/  potential  habitual  offenders.   He

contended  before  the  Tribunal  that  he was  entitled  for  a

second  warning  before  an  order  of  discharge  could  have

been passed against him in accordance with the Policy.  The

Tribunal accepted the submission made by the Respondent

and allowed the application.  The order of discharge was set

aside.    The  Respondent  was  held  to  be  entitled  to  all

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consequential  benefits,  including  back  wages  which  were

restricted to 25 per cent.  The Review Application filed by

the Appellant was rejected by the Tribunal.              

5. The only point that arises for our consideration in the

present case is the interpretation of the Policy dealing with

habitual offenders.   The Air Force Policy dated 16.12.1996

was issued by the Air Force Headquarters, prescribing the

procedure  to  be  followed  while  processing  the  cases  of

habitual  offenders.   According to the Policy,  an Airman is

entitled  to  be  issued  a  precautionary  warning  (being  a

habitual offender).  The Airman has to be informed that he

would be getting another opportunity to mend himself and

any  addition  of  another  punishment  entry,  either  Red  or

Black, would result in his discharge from the service.   Para 2

(b)  of  the  Policy  provides  that  whenever  the  case  of  an

Airman is considered by the competent authority for final

orders and he is afforded one more chance, a warning letter

is required to be issued to him by his Commanding Officer

again.   The said warning letter shall be treated as a second

time warning.   Para 3 of the Policy postulates that habitual

offenders shall be served with a show cause notice calling

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upon them to explain the reasons as to why the proposed

action of discharge from service shall not be taken against

them.  The habitual offenders are entitled for an opportunity

to submit their explanation before an order of discharge is

passed.   

6. The Tribunal was of the opinion that the Respondent

was given only one warning.  As the second warning which

is mandatory according to the Policy was not given to the

Respondent, the Tribunal was of the view that the order of

discharge  was  vitiated.   The  Tribunal  failed  to  take  into

account  the  fact  that  para  2  (b)  provides  for  a  second

warning  only  when  the  competent  authority  considers

issuance  of  final  orders  but  is  also  of  the  opinion  that

another  chance  should  be  given  to  the  Airman.   The

requirement of the second warning letter would be only in

such circumstances.   

7. The  Respondent  was  initially  a  potential  habitual

offender before he was considered as a habitual offender.

He  was  entitled  for  a  warning  to  be  issued  in  2008.

Admittedly,  there was a delay in issuance of  the warning

letter.   Ultimately,  the  warning  letter  was  issued  on

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18.04.2012.    The  Respondent  did  not  mend  himself  for

which reason a show cause notice was issued to him.  Even

in the explanation to the show cause notice, the Respondent

did not dispute the allegations of misconduct made against

him.   He,  in  fact,  admitted to  having indulged in  acts  of

indiscipline and sought  for  another  opportunity  to  correct

himself.   The show cause notice issued to the Respondent is

in accordance with the Habitual Offenders Policy.    A second

warning letter is not required when it is decided to pass a

final  order  without  giving  another  chance.  There  is  no

violation of the procedure prescribed by the Policy dated

16.12.1996.

8. For the aforementioned reasons, the judgment of the

Tribunal  is  set  aside.   Accordingly,  the  Appeals  are

allowed.        

                   ..…................................J                                              [L. NAGESWARA RAO]

                                     ..…................................J                                                          [HEMANT GUPTA]

New Delhi, November 08, 2019

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